Over 35 states in the USA and many other countries around the world including Australia, Canada and New Zealand have successfully implemented effective apologies legislation. It is now the turn of Scotland.
The Apologies (Scotland) Bill was first proposed as a member’s bill in the Scottish Parliament by Margaret Mitchell MSP. The bill proposes that except in the case of fatal accident enquiries and actions of defamation, if an apology is made which contains an “express or implied admission of fault” this apology cannot be led as evidence in civil proceedings. The over-riding aim of the bill is to encourage apologies enabling wronged parties to gain closure and move on, without raising court action thus easing the administrative burden of the time and cost of litigation.
As a solicitor I wish I had a penny for every time I have heard the words “It’s the point of principle” or “It’s not about the money” but perhaps these statements should not be treated with cynicism but with the recognition that the use of apologies may in fact offer an opportunity to avoid the adversarial system.
Indeed the efficacy of an apology should not be underrated. Jennifer Robbennolt Professor of Law and Psychology , University of Illinois noted that “contemporary empirical research has…generally found that apologies influence claimants’ perceptions, judgements and decisions in ways that are likely to make settlements more likely- for example, altering the perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgements, and increasing willingness to accept an offer of settlement.”
But what is the definition of an apology? The proposal is that to benefit from “the immunity” an apology should contain three elements:
- An acknowledgement that there has been a wrong doing
- An expression of regret, sorrow or sympathy for the wrong doing
- A recognition of direct or indirect responsibility for the wrong doing
I have mixed feelings about the introduction of this bill. I see it more of a clarification of the current law rather than a change. At the moment in Scotland an apology itself will not amount to an admission of liability, as liability is a legal conclusion drawn by the courts taking all evidence into account. Also I wonder if an apology expressed in such a formulaic way will genuinely provide closure for a wronged party. When this bill is passed it may be possible for parties to make admissions in the knowledge that if they parcel these admissions up in an apology these cannot be used in a civil court. Is that a genuine apology?
That said I recognise that there is huge pressure in Scotland for example on the NHS. The increase in compensation claims made by the NHS is staggering. Payments I understand have risen from £1.6 million in 2000-20001 to £58.24 million in 2010-2011 and these figures are only the tip of the iceberg if you think of the cost of out of court settlements, lawyers’ fees and other costs representing a major hidden drain of NHS funding so something has to be done.
The Apologies ( Scotland) Bill hopes to help the situation and I for one will keep an open mind. However as Margaret Mitchell herself admits “you cannot legislate to make people empathise.”
If I can help in any matters of dispute resolution please contact me Angela Ainsley by telephoning 0141-552-3422 or by emailing email@example.com